Full Text of SB1355 97th General Assembly
SB1355 97TH GENERAL ASSEMBLY |
| | 97TH GENERAL ASSEMBLY
State of Illinois
2011 and 2012 SB1355 Introduced 2/8/2011, by Sen. A. J. Wilhelmi SYNOPSIS AS INTRODUCED: |
| 735 ILCS 5/15-1503 | from Ch. 110, par. 15-1503 | 735 ILCS 5/15-1508 | from Ch. 110, par. 15-1508 |
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Amends the Code of Civil Procedure. Provides that a copy of the notice of foreclosure of residential real estate shall be sent to the municipality or county in which the property is located by first class mail (instead of sent pursuant to the Code of Civil Procedure). Provides that the mortgagee, judgment creditor, or other lien holder shall furnish the confirmation order to the last-known insurer of a residential building in writing by first-class mail after the mortgagee, judgment creditor, or lien holder becomes the mortgagee-in-possession. Provides that the failure to send or receive a copy of the order does not affect the rights of the mortgagee or purchaser or affect the foreclosure proceedings. Makes other changes.
Effective immediately.
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| | A BILL FOR |
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| 1 | | AN ACT concerning civil law.
| 2 | | Be it enacted by the People of the State of Illinois,
| 3 | | represented in the General Assembly:
| 4 | | Section 5. The Code of Civil Procedure is amended by | 5 | | changing Sections 15-1503 and 15-1508 as follows: | 6 | | (735 ILCS 5/15-1503) (from Ch. 110, par. 15-1503) | 7 | | Sec. 15-1503. Notice of Foreclosure. | 8 | | (a) A notice of foreclosure, whether
the foreclosure is | 9 | | initiated by complaint or
counterclaim, made in accordance with | 10 | | this Section and recorded in the
county in which the mortgaged | 11 | | real estate is located shall be constructive
notice of the | 12 | | pendency of the foreclosure to every person claiming an
| 13 | | interest in or lien on the mortgaged real estate, whose | 14 | | interest or lien
has not been recorded prior to the recording | 15 | | of such notice of foreclosure.
Such notice of foreclosure must | 16 | | be executed by any party or any party's
attorney and shall | 17 | | include (i) the names of all plaintiffs and the case
number, | 18 | | (ii) the court in which the action was brought, (iii) the names | 19 | | of
title holders of record, (iv) a legal description of the | 20 | | real estate
sufficient to identify it with reasonable | 21 | | certainty, (v) a common address
or description of the location | 22 | | of the real estate and (vi) identification
of the mortgage | 23 | | sought to be foreclosed. An incorrect common address or
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| 1 | | description of the location, or an immaterial error in the | 2 | | identification
of a plaintiff or title holder of record, shall | 3 | | not invalidate the lis
pendens effect of the notice under this | 4 | | Section.
A notice which complies with this Section shall be | 5 | | deemed to comply with
Section 2-1901 of the Code of Civil
| 6 | | Procedure and shall have the same effect as a notice filed | 7 | | pursuant to
that Section; however, a notice which complies with | 8 | | Section 2-1901 shall
not be constructive notice unless it also | 9 | | complies with the requirements of
this Section. | 10 | | (b) With respect to residential real estate, a copy of the | 11 | | notice of foreclosure described in subsection (a) of Section | 12 | | 15-1503 shall be sent by first class mail, postage prepaid, to | 13 | | the municipality within the boundary of which the mortgaged | 14 | | real estate is located, or to the county within the boundary of | 15 | | which the mortgaged real estate is located if the mortgaged | 16 | | real estate is located in an unincorporated territory. A | 17 | | municipality or county must clearly publish on its website a | 18 | | single address to which such notice shall be sent. If a | 19 | | municipality or county does not maintain a website, then the | 20 | | municipality or county must publicly post in its main office a | 21 | | single address to which such notice shall be sent. In the event | 22 | | that a municipality or county has not complied with the | 23 | | publication requirement in this subsection (b), then such | 24 | | notice to the municipality or county shall be sent by first | 25 | | class mail to the chairperson of the county board or county | 26 | | clerk in the case of a county, to the mayor or city clerk in the |
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| 1 | | case of a city, to the president of the board of trustees or | 2 | | village clerk in the case of a village, or to the supervisor or | 3 | | town clerk in the case of a town provided pursuant to Section | 4 | | 2-211 of the Code of Civil Procedure . | 5 | | (Source: P.A. 96-856, eff. 3-1-10.) | 6 | | (735 ILCS 5/15-1508) (from Ch. 110, par. 15-1508) | 7 | | Sec. 15-1508. Report of Sale and Confirmation of Sale. | 8 | | (a) Report. The person conducting the sale shall promptly | 9 | | make a report to
the court, which report shall include a copy | 10 | | of all receipts and, if any,
certificate of sale. | 11 | | (b) Hearing. Upon motion and notice in accordance with | 12 | | court rules
applicable to motions generally, which motion shall | 13 | | not be made prior to
sale, the court shall conduct a hearing to
| 14 | | confirm the sale. Unless the court finds that (i) a notice | 15 | | required in
accordance with subsection (c) of Section 15-1507 | 16 | | was not given, (ii) the
terms of sale were unconscionable, | 17 | | (iii) the sale was conducted
fraudulently or (iv) that justice | 18 | | was otherwise not done, the court shall
then enter an order | 19 | | confirming the sale. The confirmation order shall include a | 20 | | name, address, and telephone number of the holder of the | 21 | | certificate of sale or deed issued pursuant to that certificate | 22 | | or, if no certificate or deed was issued, the purchaser, whom a | 23 | | municipality or county may contact with concerns about the real | 24 | | estate. The confirmation order may
also: | 25 | | (1) approve the mortgagee's fees and costs arising |
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| 1 | | between the entry of
the judgment of foreclosure and the | 2 | | confirmation hearing, those costs and
fees to be allowable | 3 | | to the same extent as provided in the note and mortgage
and | 4 | | in Section 15-1504; | 5 | | (2) provide for a personal judgment against any party | 6 | | for a deficiency;
and | 7 | | (3) determine the priority of the judgments of parties | 8 | | who deferred proving
the priority pursuant to subsection | 9 | | (h) of Section 15-1506, but
the court shall not
defer | 10 | | confirming the sale pending the determination of such | 11 | | priority. | 12 | | (b-5) Notice with respect to residential real estate. With | 13 | | respect to residential real estate, the notice required under | 14 | | subsection (b) of this Section shall be sent to the mortgagor | 15 | | even if the mortgagor has previously been held in default. In | 16 | | the event the mortgagor has filed an appearance, the notice | 17 | | shall be sent to the address indicated on the appearance. In | 18 | | all other cases, the notice shall be sent to the mortgagor at | 19 | | the common address of the foreclosed property. The notice shall | 20 | | be sent by first class mail. Unless the right to possession has | 21 | | been previously terminated by the court, the notice shall | 22 | | include the following language in 12-point boldface | 23 | | capitalized type: | 24 | | IF YOU ARE THE MORTGAGOR (HOMEOWNER), YOU HAVE THE RIGHT TO | 25 | | REMAIN IN POSSESSION FOR 30 DAYS AFTER ENTRY OF AN ORDER OF | 26 | | POSSESSION, IN ACCORDANCE WITH SECTION 15-1701(c) OF THE |
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| 1 | | ILLINOIS MORTGAGE FORECLOSURE LAW. | 2 | | (b-10) Notice of confirmation order sent to municipality or | 3 | | county. With respect to residential real estate, a A copy of | 4 | | the confirmation order required under subsection (b) shall be | 5 | | sent by first class mail, postage prepaid, to the municipality | 6 | | in which the foreclosed property is located, or to the county | 7 | | within the boundary of which the foreclosed property is located | 8 | | if the foreclosed property is located in an unincorporated | 9 | | territory. A municipality or county must clearly publish on its | 10 | | website a single address to which such order notice shall be | 11 | | sent. If a municipality or county does not maintain a website, | 12 | | then the municipality or county must publicly post in its main | 13 | | office a single address to which such order notice shall be | 14 | | sent. In the event that a municipality or county has not | 15 | | complied with the publication requirement in this subsection | 16 | | (b-10), then such order notice to the municipality or county | 17 | | shall be sent by first class mail to the chairperson of the | 18 | | county board or county clerk in the case of a county, to the | 19 | | mayor or city clerk in the case of a city, to the president of | 20 | | the board of trustees or village clerk in the case of a | 21 | | village, or to the supervisor or town clerk in the case of a | 22 | | town provided pursuant to Section 2-211 of the Code of Civil | 23 | | Procedure . | 24 | | (b-15) Notice of confirmation order sent to known insurers. | 25 | | With respect to residential real estate, a copy of the | 26 | | confirmation order required under subsection (b) shall be sent |
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| 1 | | by first class mail, postage prepaid, to the last-known | 2 | | property insurer of the foreclosed property. Failure to send or | 3 | | receive a copy of the order shall not impair or abrogate in any | 4 | | way the rights of the mortgagee or purchaser or affect the | 5 | | status of the foreclosure proceedings. | 6 | | (c) Failure to Give Notice. If any sale is held without | 7 | | compliance with
subsection (c) of Section 15-1507 of this | 8 | | Article, any party entitled to
the notice provided for in | 9 | | paragraph (3) of that subsection
(c) who was not so notified | 10 | | may, by motion supported by affidavit
made prior to | 11 | | confirmation of such sale, ask the court which entered the
| 12 | | judgment to set aside the sale. Any such party shall guarantee | 13 | | or secure by bond a bid equal to the successful bid at the | 14 | | prior sale, unless the party seeking to set aside the sale is | 15 | | the mortgagor, the real estate sold at the sale is residential | 16 | | real estate, and the mortgagor occupies the residential real | 17 | | estate at the time the motion is filed. In that event, no | 18 | | guarantee or bond shall be required of the mortgagor. Any
| 19 | | subsequent sale is subject to the same notice requirement as | 20 | | the original sale. | 21 | | (d) Validity of Sale. Except as provided in subsection (c) | 22 | | of Section
15-1508, no sale under this Article shall be held | 23 | | invalid or be set aside
because of any defect in the notice | 24 | | thereof or in the publication of the
same, or in the | 25 | | proceedings of the officer conducting the sale, except upon
| 26 | | good cause shown in a hearing pursuant to subsection (b) of |
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| 1 | | Section
15-1508. At any time after a sale has occurred, any | 2 | | party entitled to
notice under paragraph (3) of subsection (c) | 3 | | of Section 15-1507 may recover
from the mortgagee any damages | 4 | | caused by the mortgagee's failure to comply
with such paragraph | 5 | | (3). Any party who recovers damages in a judicial
proceeding | 6 | | brought under this subsection may also recover from the
| 7 | | mortgagee the reasonable expenses of litigation, including | 8 | | reasonable attorney's fees. | 9 | | (d-5) Making Home Affordable Program. The court that | 10 | | entered the judgment shall set aside a sale held pursuant to | 11 | | Section 15-1507, upon motion of the mortgagor at any time prior | 12 | | to the confirmation of the sale, if the mortgagor proves by a | 13 | | preponderance of the evidence that (i) the mortgagor has | 14 | | applied for assistance under the Making Home Affordable Program | 15 | | established by the United States Department of the Treasury | 16 | | pursuant to the Emergency Economic Stabilization Act of 2008, | 17 | | as amended by the American Recovery and Reinvestment Act of | 18 | | 2009, and (ii) the mortgaged real estate was sold in material | 19 | | violation of the program's requirements for proceeding to a | 20 | | judicial sale. The provisions of this subsection (d-5), except | 21 | | for this sentence, shall become inoperative on January 1, 2013 | 22 | | for all actions filed under this Article after December 31, | 23 | | 2012, in which the mortgagor did not apply for assistance under | 24 | | the Making Home Affordable Program on or before December 31, | 25 | | 2012. | 26 | | (e) Deficiency Judgment. In any order confirming a sale |
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| 1 | | pursuant to the
judgment of foreclosure, the court shall also | 2 | | enter a personal judgment
for deficiency against any party (i) | 3 | | if otherwise authorized and (ii) to
the extent requested in the | 4 | | complaint and proven upon presentation of the
report of sale in | 5 | | accordance with Section 15-1508. Except as otherwise provided
| 6 | | in this Article, a judgment may be entered for any balance of | 7 | | money that
may be found due to the plaintiff, over and above | 8 | | the proceeds of the sale
or sales, and enforcement may be had | 9 | | for the collection of such balance,
the same as when the | 10 | | judgment is solely for the payment of money. Such
judgment may | 11 | | be entered, or enforcement had,
only in cases where personal | 12 | | service has been had upon the
persons personally liable for the | 13 | | mortgage indebtedness, unless they have
entered their | 14 | | appearance in the foreclosure action. | 15 | | (f) Satisfaction. Upon confirmation of the sale, the
| 16 | | judgment stands satisfied to the extent of the sale price less | 17 | | expenses and
costs. If the order confirming the sale includes a | 18 | | deficiency judgment, the
judgment shall become a lien in the | 19 | | manner of any other
judgment for the payment of money. | 20 | | (g) The order confirming the sale shall include, | 21 | | notwithstanding any
previous orders awarding possession during | 22 | | the pendency of the foreclosure, an
award to the purchaser of | 23 | | possession of the mortgaged real estate, as of the
date 30 days | 24 | | after the entry of the order, against the
parties to the | 25 | | foreclosure whose interests have been terminated. | 26 | | An order of possession authorizing the removal of a person |
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| 1 | | from possession
of the mortgaged real estate shall be entered | 2 | | and enforced only against those
persons personally
named as | 3 | | individuals in the complaint or the petition under subsection | 4 | | (h)
of Section 15-1701 and in the order of possession and shall
| 5 | | not be entered and enforced against any person who is only | 6 | | generically
described as an
unknown owner or nonrecord claimant | 7 | | or by another generic designation in the
complaint. | 8 | | Notwithstanding the preceding paragraph, the failure to | 9 | | personally
name,
include, or seek an award of
possession of the | 10 | | mortgaged real estate against a person in the
confirmation | 11 | | order shall not abrogate any right that the purchaser may have | 12 | | to
possession of the mortgaged real estate and to maintain a | 13 | | proceeding against
that person for
possession under Article 9 | 14 | | of this Code or subsection (h) of Section 15-1701;
and | 15 | | possession against a person
who (1) has not been personally | 16 | | named as a party to the
foreclosure and (2) has not been | 17 | | provided an opportunity to be heard in the
foreclosure | 18 | | proceeding may be sought only by maintaining a
proceeding under | 19 | | Article 9 of this
Code or subsection (h) of Section 15-1701. | 20 | | (Source: P.A. 95-826, eff. 8-14-08; 96-265, eff. 8-11-09; | 21 | | 96-856, eff. 3-1-10; 96-1245, eff. 7-23-10; revised 9-16-10.)
| 22 | | Section 99. Effective date. This Act takes effect upon | 23 | | becoming law.
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